In one of the most eagerly awaited decisions of the U.S. Supreme Court’s term, the justices ruled in a 5-4 decision on June 26, 2013, that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The opinion, written by Justice Anthony Kennedy and joined by the four liberal justices (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), struck down Section 3’s federal definition of “marriage” and “spouse,” while leaving intact the law’s Section 2, which lets states refuse to recognize same-sex marriages performed under the laws of other states.
The ruling (Windsor v. Schlain, No. 12-307 (U.S. 2013)) concerns a tax refund suit by Edith Windsor, who did not qualify for the marital exemption from the federal estate tax because DOMA denied federal recognition to same-sex spouses. Windsor and Thea Spyer married in Ontario, Canada, in 2007, but continued to reside in New York City. The state of New York deemed the marriage to be valid.
Spyer left her entire estate to Windsor, who had to pay $363,053 in estate taxes because, under DOMA, she was not a “surviving spouse.”
Windsor sued, claiming that DOMA violates the guarantee of equal protection, as applied to the federal government through the Fifth Amendment, and the 2nd U.S. Circuit Court of Appeals agreed.
‘A New Insight’
The Supreme Court upheld the appeals court ruling.
“It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage,” Kennedy wrote. “For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight.”
That new insight was that “the limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other states as an unjust exclusion,” Kennedy stated.
States’ Right to Define Marriage
“Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends and their community.”
New York, 11 other states and the District of Columbia decided that same-sex couples should have the right to marry “and so live with pride in themselves and their union and in a status of equality with all other married persons,” he wrote. (Gov. Jerry Brown declared that a 13th state--California--recognized same-sex couples following the Supreme Court's Proposition 8 ruling, issued the same day as the DOMA decision.)
DOMA disrupted states’ historical role of defining and regulating marriage, the court determined. By defining “marriage” as a legal union only between one man and one woman as husband and wife and “spouse” as only a person of the opposite sex who is a husband or a wife, Congress displaced states’ right to define these terms. The law also affects more than 1,000 federal laws in which marital or spousal status is addressed.
Regulation of domestic relations is “an area that has long been regarded as a virtually exclusive province of the states,” the court noted. “Consistent with this allocation of authority, the federal government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”
Marriage laws vary from state to state in other respects, Kennedy observed. “For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire.” And in most states, first cousins may marry, but not in Iowa and Washington. “DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage,” the court stated.
Equal Dignity of Same-Sex Marriages
“DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition,” the court said.
And, as a result, “This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the state has sought to dignify.” Moreover, “it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
Kennedy concluded by noting, “The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”
“This historic ruling recognizes how unfair it is to treat married lesbian and gay couples as though they’re legal strangers,” said James Esseks, director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender Project.
“DOMA violated the fundamentally American principles of fairness and equality,” Windsor said. “Because of today’s Supreme Court ruling, every child born today will be able to grow up in a world without DOMA—a world where the federal government won’t discriminate against their marriages no matter who they are.”
But in a sharply worded dissent, Justice Antonin Scalia said, “This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”
And Scalia predicted that there now will be difficult choice-of-law issues absent a uniform federal definition of marriage. “Imagine a pair of women who marry in Albany and then move to Alabama, which does not recognize as valid any marriage of parties of the same sex. When the couple files their next federal tax return, may it be a joint one? Which state’s law controls, for federal-law purposes: their state of celebration (which recognizes the marriage) or their state of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a state’s choice-of-law rules? If so, which state’s? And what about states where the status of an out-of-state same-sex marriage is an unsettled question under local law? DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes.”
Scalia also remarked, “To defend traditional marriage is not to condemn, demean or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean or humiliate other constitutions. To hurl such accusations so casually demeans this institution.” He added, “It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostis humani generis, enemies of the human race.”
As for the majority’s statement that its decision is confined to those couples in same-sex marriages made lawful by their state, Scalia wrote, “The only thing that will ‘confine’ the court’s holding is its sense of what it can get away with.” He added, “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.” As for the majority opinion’s limiting assurance, that will “be meaningless,” Scalia predicted.
Proposition 8 Decision Vacated
In a separate decision (Hollingsworth v. Perry, No. 12-144 (U.S. 2013)) on June 26, 2013, the Supreme Court vacated the 9th Circuit’s decision that the 14th Amendment’s Equal Protection Clause bars California from adopting a constitutional amendment—Proposition 8—that prohibited same-sex marriage.
Two same-sex couples wishing to marry sued in federal court, challenging Proposition 8’s constitutionality. The complaint named as defendants California’s governor, attorney general and various other state and local officials responsible for enforcing California’s marriage laws. Those officials refused to defend the law, though they continued to enforce it. The district court ruled that Proposition 8 was unconstitutional, and the officials declined to appeal it.
However, petitioners, such as ProtectMarriage.com, appealed the district court ruling and 9th Circuit ruling. The groups had no standing to sue, the Supreme Court determined.
“After the district court declared Proposition 8 unconstitutional and enjoined the state officials named as defendants from enforcing it … respondents no longer had any injury to redress—they had won—and the state officials chose not to appeal.”
ProtectMarriage.com issued a release stating, “We are pleased that the Supreme Court has reversed the 9th Circuit Court of Appeals’ misguided decision that sought to invalidate Proposition 8. For the more than 7 million Californians who have seen their vote stripped away from them, little by little, over the course of five years, that decision is gratifying. While it is unfortunate that the court’s ruling does not directly resolve questions about the scope of the trial court’s order against Prop 8, we will continue to defend Prop 8 and seek its enforcement until such time as there is a binding statewide order that renders Prop 8 unenforceable.”
Gov. Jerry Brown, D, issued the following statement on the Proposition 8 ruling. "After years of struggle, the U.S. Supreme Court today has made same-sex marriage a reality in California. In light of the decision, I have directed the California Department of Public Health to advise the state's counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the 9th Circuit confirms the stay is lifted."
The effect of the ruling is that the 2010 federal district court's decision that Proposition 8 is unconstituional is left intact and the law cannot be enforced, he added.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.